Cunningham v. State

332 So.3d 918

Natasha Lashay CUNNINGHAM

v.STATE of Alabama

CR-18-0551

Court of Criminal Appeals of Alabama.

September 20, 2019

Rehearing Denied November 15, 2019

Robin C. Freeman of Shealy, Crum & Pike, P.C., Dothan, for appellant.

Steve Marshall, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.

WINDOM, Presiding Judge.

Natasha Lashay Cunningham appeals her convictions for unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975, and second-degree possession of marijuana, a violation of § 13A-12-214, Ala. Code 1975.¹ The Houston Circuit Court sentenced Cunningham to 48 months in prison for her possession-of-a-controlled-substance conviction and to 12 months in jail for her possession-of-marijuana conviction, and ordered that the sentences were to be served concurrently. Cunningham filed a motion for new trial, which was denied.

On December 8, 2016, Sergeant Robert Cole with the Dothan Police Department, along with another officer, conducted a traffic stop after the driver failed to use the proper turn signal and made an improper lane change. Sgt. Cole approached the driver's side of the vehicle while the other officer approached the passenger side. Cunningham, the driver, rolled down her window. Sgt. Cole informed Cunningham why he stopped her and asked for her driver's license. Cunningham told Sgt. Cole that her driver's license had been suspended. Sgt. Cole asked Cunningham to step outside the vehicle, and she complied. Meanwhile, the other officer made contact with the passenger, Eugene Neal. When the officer determined that there was a warrant for Neal's arrest, he informed Neal that he would be taken into custody. Cunningham then became aggressive and angry. She "darted" from behind the vehicle and went to the driver's side door, which she opened. Cunningham had her upper body inside the vehicle. Concerned for his safety, Sgt. Cole pulled her out of the vehicle. Cunningham had her purse in her hands. Because of safety concerns and Cunningham's behavior, Sgt. Cole placed Cunningham in handcuffs until the traffic stop could be completed. While Cunningham was being handcuffed, her purse fell to the ground and various items fell out. Sgt. Cole picked up the items to put them back inside the purse. As he did so, he smelled marijuana. Sgt. Cole searched the purse and found a pill bottle in one of the side pockets along with a clear bag in the main portion of the purse.

Both the bottle and the bag contained marijuana. Sgt. Cole also found a white box that contained several bags of methamphetamine and a glass pipe. A digital scale was found during a subsequent search of the vehicle.

On appeal, Cunningham argues that the circuit court erred: 1) by considering the offense of possession of a controlled substance to be a lesser-included offense of distribution and submitting that charge to the jury for consideration; 2) by denying her motion for mistrial after a witness stated that Cunningham had prior drug offenses; 3) by denying her motion for a judgment of acquittal; 4) by denying her motion to suppress the evidence seized from her purse; and 5) by denying her Batson motion.²

I.

Cunningham argues that the circuit court erred when, after granting her motion for a judgment of acquittal to the charge of distributing a controlled substance, it submitted the charge of unlawful possession of a controlled substance as a lesser-included charge to the jury.³

This Court has never directly decided the question of whether simple possession of a controlled substance is a lesser-included offense of distribution of a controlled substance.⁴ However, in Harris v. State, 274 So. 3d 304 (Ala. Crim. App. 2018), this Court held that possession of a controlled substance was a lesser-included offense of an attempt to commit distribution. Because Harris had been convicted of attempting to commit distribution of a controlled substance and of marijuana, double jeopardy precluded his convictions for possession of a controlled substance and possession of marijuana.⁵

" Section 13A-1-9(a), Ala. Code 1975, provides:

" ‘(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:

" ‘(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or

" ‘(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or

" ‘(3) It is specifically designated by statute as a lesser degree of the offense charged; or

" ‘(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.’

"In Williams v. State, 104 So. 3d 254 (Ala. Crim. App. 2012), this Court explained that,

" ‘ " ‘ "to be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged[,]" Payne v. State, 391 So. 2d 140, 143 (Ala. Cr. App.), writ denied, 391 So. 2d 146 (Ala. 1980), ... unless it is so declared by statute.’

" ‘ " James v. State, 549 So. 2d 562, 564 (Ala. Cr. App. 1989). ‘Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis.’ Aucoin v. State, 548 So. 2d 1053, 1057 (Ala. Cr. App. 1989). ‘In determining whether one offense is a lesser included offense of the charged offense, the potential relationship of the two offenses must be considered not only in the abstract terms of the defining statutes but ... also ... in light of the particular facts of each case.’ Ingram v. State, 570 So. 2d 835, 837 (Ala. Cr. App. 1990) (citing Ex parte Jordan, 486 So. 2d 485, 488 (Ala. 1986) ; emphasis in original). See alsoFarmer v. State, 565 So. 2d 1238 (Ala. Cr. App. 1990)."

" ‘[ Ford v. State,] 612 So. 2d [1317,] 1318 [(Ala. Crim. App. 1992)]. The "particular facts" of each case are those facts alleged in the indictment. Thus, "the statutory elements of the offenses and facts alleged in an indictment--not the evidence presented at trial or the factual basis provided at the guilty-plea colloquy--are the factors that determine whether one offense is included in another." Johnson v. State, 922 So. 2d 137, 143 (Ala. Crim. App. 2005).’

" Williams, 104 So. 3d at 264."

Harris v. State, 274 So. 3d at 308.

Section 13A-12-211, Ala. Code 1975, provides that "[a] person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he or she sells, furnishes, gives away, delivers, or distributes a controlled substance enumerated in Schedules I through V." Section 13A-12-212(a)(1), Ala. Code 1975, provides that "[a] person commits the crime on unlawful possession of a controlled substance if[,] ...[e]xcept as otherwise authorized, he or she possesses a controlled substance enumerated in Schedules I through V."

"Based on the statutory elements of the offense[ ] and facts as alleged in the indictments, possession of [methamphetamine] ... [is a] lesser-included offense[ ] of [distribution of methamphetamine]. Specifically, the commission of the [distribution offense] as alleged in the indictment necessarily included all the elements of the possession offense[ ] as alleged in the indictment."

Harris, 274 So. 3d at 309.⁶

This Court recognizes, as have other courts, that there may be circumstances in which a substance may be distributed without the defendant's having any actual or constructive possession. However, in this case, Cunningham did have possession of the controlled substance; therefore, under these circumstances, the circuit court properly found possession to be a lesser-included offense of distribution. Thus, the circuit court did not err in instructing the jury on the offense of unlawful possession of a controlled substance.

II.

Cunningham contends that the circuit court erred by failing to declare a mistrial after a witness testified that Cunningham had prior drug offenses.

During the cross-examination of Sgt. Cole, the following transpired:

"[Defense counsel:] You asked her for her license, and she told you [it was] suspended?

"[Sgt. Cole:] That's correct. She said [it was] suspended for prior drug offenses.

"[Defense counsel]: Judge, I am going to object to that.

"THE COURT: I'll sustain the objection to that.

"[Defense counsel]: I would ask that it be struck from the record.

"THE COURT: Ladies and gentlemen, disregard that last response from Sergeant Cole.

"[Defense counsel:] Judge, may we approach on that?

"THE COURT: Yes, sir.

"[Defense counsel]: Judge, for the record, I would ask for a mistrial, based upon that. We are here on a drug case. There's been -- it's kind of -- you can't unring the bell. They have heard that she has a prior drug charge, and we are here on a drug charge. So I would ask for a mistrial.

"....

"THE COURT: I will deny the motion for a mistrial, but I will instruct the jury again that they will need to disregard that. And I will ask the jury if there's anyone on the jury who feels they could not disregard that.

"[Defense counsel:] Okay. That's our objection, Judge.

"THE COURT: Yes, sir. I'll note that.

"THE COURT: Ladies and gentlemen, again, I'll instruct you to disregard the last answer to the last question presented to Sergeant Cole as to the status of her license. And there's some reference made in Sergeant Cole's answer to some other proceeding. That has nothing to do with this case.

"Let me ask each member of the jury, is there any member of the jury who feels that they could not disregard the response that Sergeant Cole made to that question from [defense counsel]?

"THE COURT: I'll let the record reflect that no juror has responded to that.

"Again, ladies and gentlemen, just disregard the response that Sergeant Cole made to that."

(R. 103-05.)

The circuit court has the discretion to grant or deny a motion for a...